The optimism in our political horizon set in motion by the presidential dialogue should not come to a halt only after reconstituting the Election Commission (EC). The proposed legislation for a search committee under Article 118 of the Constitution is a welcome development, although it might be of little help in overcoming our political impasse.
It is the responsibility of the contending parties to make the presidential palace a lighthouse. The door of the Bangabhaban must be open since the opposition feels uncomfortable on the parliament floor.
The most significant outcome of the dialogue so far is the indications of willingness by the ruling party to talk about the caretaker government. LGRD Minister Syed Ashraful Islam said that they would welcome "any initiative" taken by the president for holding free and fair polls. "Any initiative" is a ray of hope that reminded me of the Clause 5 of Article 48 of the Constitution, which was hardly invoked in Bangladesh.
Clause 5 of Article 48 says that the prime minister shall submit for the consideration of the cabinet ''any matter'' which the president may request him/her to refer to it. There are a few constitutional options that warranted the attention of the president. One of them will be discussed. He will need to examine the full verdict of the apex court, which is yet to be written.
The Daily Star editorial (November 29, 2011) rightly relied upon the essence of short order of the apex court which validated tenth and eleventh parliamentary elections under the 13th Amendment. The Daily Star response came following a remark made by Justice M.H. Rahman, who said that "self respecting nations cannot adhere to the caretaker system." Thanks to his consideration that he did not use "self respecting leaders."
Interestingly, The Daily Star highlighted a report titled ''Caretaker illegal right after the verdict'' on its front page on June 17, 2011. The short order said: ''The 13th Amendment is prospectively declared void and ultra vires the Constitution."
The Daily Star's interpretation of ''prospectively'' contradicted the arguments advanced by the opposition leader. Eminent experts said the word "prospectively" meant that the declaration became effective the moment the apex court announced it. However, a lead item appeared on the same day's newspaper titled ''PM interpreted verdict wrongly." Backed by Barrister Moudud Ahmed, the former PM argued that "prospectively" meant that the illegality of the caretaker would not be effective immediately.
The PM took the decision to repeal the CTG, overriding the draft of the Special Parliamentary Committee which only recommended minor amendments of the CTG in light of the verdict.
On the meaning and scope of "prospectively," I talked with five law experts in June -- former Chief Justice Mostafa Kamal, Mahmudul Islam, Dr. M Zahir, Dr. Shahdhin Malik and the Attorney General Mahbubey Alam. As I understand, there are different opinions but consensus on two counts. All at least agreed that the short order was ambiguous and their opinion should not be taken as conclusive since the full verdict was still to be published. Dr. Kamal Hossain told me he would go for review of the 13th Amendment verdict if necessary.
The Supreme Court of India (SCI) first invoked the "doctrine of prospective overruling" in 1967 in the famous Golaknath case ''in the context of invalidity of certain constitutional amendments and extended gradually to the laws found unconstitutional or even to the interpretation of ordinary statutes.''
A 1994 SCI ruling said: "It is now well settled that courts can make the law laid down by them prospective in operation to prevent unsettlement of the settled positions, to prevent administrative chaos and to meet the ends of justice."
In Bangladesh, the apex court never discussed this great harmonising principle; invoked only in our 8th Amendment. Mahmudul Islam discussed this briefly in his book "The Constitutional Law of Bangladesh."
Senior advocate M.I. Farooki, the petitioner's lawyer in the 13th Amendment case, confirmed to me that the Golaknath case was merely mentioned in the hearing, though its ''elasticity'' and its extent were not discussed. The SCI in Saurabh Choudhury v. Union of India (2004) held: "Prospective application of a judgment by the court must, therefore, be expressly stated." It is expected that the full verdict has fixed the terms and conditions quite precisely about the two term election which the apex court had envisioned in the time tested Latin maxims such as ''quod alias non est licitum, necessitas licitum facit (that which otherwise is not lawful, necessity makes lawful)."
The significance of reconstitution of the EC through a search committee is paramount, though the stalemate will not end. BNP should not oppose the reconstitution process considering it as a routine constitutional imperative.
Let these dialogues be carried on to the 2013 general election. The president has absolute power to appoint a PM. There should not be any misconception about the privilege and constitutional authority of our ceremonial head. It does not matter that his "hands are tied." Our president has four conventional rights. The right to be consulted, the right to warn, the right to encourage and the right to put forward his opinions to the PM even though he may eventually be bound to act on her advice.
The president has every legitimate right to enquire about the progress of the verdict since the majority of the parties that were invited to the dialogue suggested restoration of the caretaker system.
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